The High Court handed down judgment at the end of January in a case in which the two claimants, P and A, were successful in challenging the Government’s rules on disclosure of minor, historic criminal convictions.
The claimants argued that their careers and ambitions were blighted by having to disclose past convictions that were of no relevance to their work and that it was a stain on their character that had a disproportionate and ongoing effect on their lives. The judgment places pressure on the Government to further review the criminal records disclosure regime in order to protect the right to privacy and rehabilitation of former offenders, whilst at the same time recognising the special requirements of certain sensitive professions, employments and activities.
P, is a 47 year old woman, who in 1999, whilst suffering from untreated schizophrenia, committed two offences of theft by shoplifting – stealing a sandwich and a book worth 99p. For the first offence she was cautioned. She was prosecuted for the second offence and bailed to appear at Oxford Magistrates Court, but owing to her mental health condition and the fact that she was homeless at the time, she failed to attend court. She was subsequently convicted of both the theft of the book and failing to appear and received a conditional discharge in respect of each offence. P therefore acquired two minor convictions relating to a very specific and short period of her life. She has no subsequent criminal history of any kind. P now wishes to work as a teaching assistant and has sought voluntary positions in schools. However with each application she is required to disclose the circumstances of her convictions, which has the effect of leading to the disclosure of her medical history and [she believes] has prevented her from securing a job.
The second claimant A, was convicted of two minor crimes in 1981 and 1982, when he was 17 and 18 years old respectively. He is now 51 years old and works as a finance director and project manager. He is concerned that he would be forced to disclose his convictions as part of his current employment.
The case of P and A was a challenge to the current filtering rules on disclosable convictions that were introduced in May 2013. The Government introduced the rules in response to the Court of Appeal case of T v Chief Constable of Greater Manchester Police (which went onto be heard in the Supreme Court). The filtering scheme created circumstances by which certain previous convictions do not have to be disclosed.
The filtering rules have created what has been termed a ‘bright-line’ approach – if a person has two or more convictions, these are always disclosable on a criminal record certificate (CRC). Further, where a conviction is of a specified kind or resulted in a custodial sentence, or is ‘current’ (i.e. for an adult within the last 11 years and for a minor within the last 5 and a half years), then it will always be disclosable. The list of applicable offences is extensive.
The current regime has been criticised for not going far enough in protecting an individual’s right to privacy. Christopher Stacey, co-director of Unlock, a charity that supports those with criminal records, described the rules as ‘blunt, restrictive and disproportionate’. There are still instances under the current regime where an individual would be required to disclose minor historic offences to future employers, often in circumstances where those offences bare no relevance to the type of employment sought.
In the case of P and A, the claimants argued that the current filtering scheme breached their rights to respect for private life under Article 8 of the European Convention on Human Rights (ECHR). They contended that to set the compulsory disclosure bar at two convictions, no matter what their nature, is arbitrary and neither ‘in accordance with the law’ nor necessary or proportionate under the requirements of Article 8. In its defence, the Government argued, amongst other things, that the ‘bright-line’ approach of the system allowed for fairness and legal certainty and that a more detailed review mechanism would be unworkable.
In his judgment, Lord Justice McCoombe found that the ‘present rules can give rise to some very startling consequences. Such results are, in my judgment, properly to be described as “arbitrary”’’ and he found that the present scheme was incompatible with Article 8 of the ECHR. He saw no reason why a second conviction should require an entire lifetime of disclosure and found there was no ‘rational relationship’ between this requirement and the purpose of the legislation, that of rehabilitation.
Liberty’s legal director, James Welch, who acted for the claimants, said:
‘This ruling will bring reassurance for the very many people who have had their ambitions dashed because of very small mistakes they made years, or even decades, in the past. The Government must urgently fix this broken system, which rightly allows people with a single minor offence to move on with their lives, while those with two – no matter the nature or circumstances of their crimes – cannot. We are delighted the High Court has recognised the importance of the human right to privacy in allowing people to rebuild their lives.’
The court has asked for further submissions from the parties before they decide on the remedies for the claimants.
We will have to see how the Government responds to this judgment: whether they will recalibrate the dividing lines or introduce a meaningful review mechanism remains unclear. Clearly the Government’s task is to rebalance the scales to give appropriate weight to both the requirement for relevant and proportionate disclosure of convictions, and the individual’s right to privacy and for past wrongs not to be a permanent stain on their character.
Whatever comes next, the recent judgment is a welcome step in addressing the shortcomings of the current system and should go a long way to allowing those guilty of minor past wrongs to move on with their lives.
Francesca is a public law and human rights solicitor at Matthew Gold & Co Solicitors. She has particular interest in public law challenges arising in the criminal justice context, data protection issues and community care matters